Pilorge v. Panzarella et al

Filing 36

MEMORANDUM OPINION AND ORDER re: 24 MOTION to Dismiss filed by O'Cana, William Keyser, Mario Panzarella, P. Heath, Emery Malloy, Ivan Harvey, Emily Torres. Defendants' motion to dismiss is GRANTED. The Clerk of the Court is directed to t erminate the motion (Docket No. 24), to close the case, and to mail a copy of this Memorandum Opinion and Order to Plaintiff.The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Jesse M. Furman on 8/27/2013) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PATRICK PILORGE,
:
:
Plaintiff,
:
:
-v:
:
MARIO PANZARELLA ET AL.,
:
:
Defendants.
:
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08/27/2013

12 Civ. 6459 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Patrick Pilorge, a state prisoner proceeding pro se, brings this action pursuant to
Title 42, United States Code, Section 1983, against seven Defendants, all current or former
employees of the New York State Department of Correctional Services (“DOCS”), alleging that
Defendants violated his constitutional rights under the Eighth and Fourteenth Amendments.
Defendants move to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. For the reasons discussed below, Defendants‟ motion is GRANTED,
and the Amended Complaint is dismissed.
BACKGROUND
The following facts are taken from the Amended Complaint and are assumed to be true
for purposes of this motion. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471,
475 (2d Cir. 2009).
Plaintiff is a New York State prisoner currently incarcerated at the Sing Sing Correctional
Facility (“Sing Sing”) in Ossining, New York. (Am. Compl. II(A)). On or about November 24,
2011, Plaintiff informed Defendant Emily Torres, a corrections officer at Sing Sing, that the sink
in his prison cell was damaged. (Am. Compl. Statement of Claim (A)). Torrres took no steps to

repair the broken sink, and Plaintiff was not moved out of his cell. (Id.). The following day,
Plaintiff cut himself on the sink. (Id.). Plaintiff told Torres about his injury, but once again
Torres did nothing to address the problem (Am. Compl. II(D)).
On December 8, 2011, the sink collapsed, injuring Plaintiff‟s right arm and left index
finger. (Am. Compl. II(D); id. Ex. A (“Dec. 9, 2011 Report”)). Plaintiff was immediately taken
to an emergency room, where he received three stitches in his arm and eight stitches in his
finger. (Dec. 9, 2011 Report; Am. Compl. II(D)). After his injuries were treated, Plaintiff was
sent to Sing Sing‟s Special Housing Unit (“SHU”) for five days. (Am. Compl. II(D)). After
investigating the incident, Defendant Panzarella, a correction officer at Sing Sing, filed a
Misbehavior Report in which she falsely stated that Plaintiff intentionally broke the sink. (See
Dec. 9, 2011 Report (explaining that Plaintiff‟s “injuries were not consistent with the facts
obtained and [his] verbal account of [the] event”); Am. Compl. Statement of Claim (D)
(describing the misbehavior report as “fraudulent”)). The sink was repaired “immediately” after
the incident. (Am. Compl. Statement of Claim (C)). As of January 23, 2013, Plaintiff‟s finger
was still “35% not operable.” (Am. Compl. III).
Plaintiff commenced this action on August 22, 2012. (Docket No. 2). After Defendants
filed a motion to dismiss (Docket No. 17), Plaintiff filed an Amended Complaint (Docket No.
23). Defendants now move to dismiss the Amended Complaint. (Docket No. 24).
LEGAL STANDARD
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the
factual allegations set forth in the complaint as true and draw all reasonable inferences in favor
of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive a
Rule 12(b)(6) motion, however, the plaintiff must plead sufficient facts “to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff
must allege sufficient facts to show “more than a sheer possibility that a defendant acted
unlawfully.” Id. A complaint that offers only “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Further, if the
plaintiff has not “nudged [his or her] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Id. at 570.
Plaintiff here is proceeding pro se. Therefore, his submission should be held “to less
stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9
(1980) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009) (stating that a court is “obligated to construe a pro se complaint liberally”). Nevertheless,
pro se plaintiffs are not excused from the normal rules of pleading and “„dismissal under Rule
12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain
relief.‟” Geldzahler v. N.Y. Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (quoting 2
Moore‟s Federal Practice § 12.34 [4][a] at 12-72.7 (2005) (alteration omitted)). Thus, the “„duty
to liberally construe a plaintiff‟s complaint [is not] the equivalent of a duty to re-write it.‟” Id.
(quoting 2 Moore‟s Federal Practice § 12.34[1][b], at 12-61 (internal quotation marks omitted));
see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (dismissing action
because pro se plaintiff “failed to allege facts tending to establish” that defendants violated his
constitutional rights).

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DISCUSSION
In his Amended Complaint, Plaintiff alleges that Defendants Torres, O‟Cana, Heath,
Keyser, and Harvey violated his constitutional rights by failing to fix the broken sink in his
prison cell, thereby showing deliberate indifference to his health and safety. (Am. Compl.
Statement of Claim (A), (B), (E)). Plaintiff further alleges that his rights were violated when
Defendants Panzarella and Malloy filed the “fraudulent” Misbehavior Report and when
Defendants confined him in the SHU for five days. He seeks monetary damages for the injuries
to his hand and arm, as well as compensation for his “mental pain and suffering.” (Am.
Compl. V).1
A. The Broken Sink
Plaintiff alleges first that Defendants violated his constitutional rights by failing to timely
replace the broken sink in his prison cell. The Eighth Amendment imposes on prison officials
the duty to provide prisoners with “humane conditions of confinement” and to “„take reasonable
measures to guarantee the safety of the inmates.‟” Farmer v. Brennan, 511 U.S. 825, 832 (1994)
(quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). The test for an Eighth Amendment
claim is twofold. First, a prisoner must show that the condition to which he was exposed was
sufficiently serious, see id. at 834, amounting to “a condition of urgency . . . that may produce
death, degeneration, or extreme pain,” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005)
1

Plaintiff does not specify whether he is suing Defendants in their official or individual
capacities. Because he is seeking only monetary damages, however, any claims against
Defendants in their official capacities are barred by the Eleventh Amendment. See, e.g., Davis
v.New York, 316 F.3d 93, 101-02 (2d Cir. 2002) (explaining that Section 1983 claims seeking
monetary damages against state officials in their official capacities must be dismissed under the
Eleventh Amendment); Bennett v. Wesley, No. 11 Civ. 8715 (JMF), 2013 WL 1798001, at *4
(S.D.N.Y. Apr. 29, 2013) (same); see also Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993)
(“[A] plaintiff who has not clearly identified in her complaint the capacity in which the
defendant is sued should not have the complaint automatically construed as focusing on one
capacity to the exclusion of the other.”).
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(internal quotations omitted). Second, a plaintiff must show that the defendant acted with a
“sufficiently culpable state of mind” — specifically, with “deliberate indifference to inmate
health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted).
Here, Defendants‟ alleged failure to replace the broken sink is not “sufficiently serious”
to constitute an Eighth Amendment violation. See Wilson v. Seiter, 501 U.S. 294, 298 (1991)
(explaining that “only those deprivations denying the minimal civilized measure of life‟s
necessities are sufficiently grave to form the basis of an Eighth Amendment violation” (citation
and internal quotation marks omitted)); see also Carr v. Canty, No. 10 Civ. 3829 (JPO), 2012
WL 3578742, at *2 (S.D.N.Y. Aug. 16, 2012) (“Plaintiffs‟ allegation that a floor at Rikers Island
was flooded by a broken pipe does not satisfy the first prong of stating a conditions-ofconfinement claim.”); Adams v. Perez, No. 08 Civ. 4834 (BSJ) (MHD), 2009 WL 513036, at *3
(S.D.N.Y. Feb. 27, 2009) (holding that defendants‟ failure to equip prison showers with rubber
mats, even after plaintiff had filed a grievance, was not “sufficiently serious”). Furthermore,
Plaintiff has not sufficiently alleged that any Defendant acted with a culpable state of mind, as it
cannot plausibly be alleged that Defendants knew that the broken sink posed a “substantial risk
of serious harm” and failed to “take reasonable measures to abate it.” Harrison v. Barkley, 219
F.3d 132, 137 (2d Cir. 2000) (quoting Farmer, 511 U.S. at 847); see also Smith v. Carpenter,
316 F.3d 178, 184 (2d Cir. 2003) (explaining that the Eighth Amendment is not a “substitute for
state tort law”). At most, Plaintiff has alleged that Defendants were negligent in failing to fix or
replace the sink, but negligence is not actionable under Section 1983. See Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012) (per curiam) (“[D]eliberate indifference requires „more than mere
negligence.‟” (quoting Farmer, 511 U.S. at 835)); Jones v. Connolly, No. 09 Civ. 3287 (SAS),
2010 WL 546730, at *1 (S.D.N.Y. Feb. 16, 2010) (holding that defendants‟ failure to repair a

5

broken step in a prison facility was “classic negligence . . . and as such cannot trigger the
protections of the Constitution”). Accordingly, Plaintiff has not stated a claim under Section
1983 for Defendants‟ failure to fix the sink in his cell.
B. The Misbehavior Report
Next, Plaintiff alleges that Defendants Panzarella and Malloy filed a “fraudulent
misbehavior report, in which . . . [they] alleged that the broken sink was of the Plaintiff‟s own
wrong doing.” (Am. Compl. Statement of Claim (D)). It is well established, however, that the
filing of a false report regarding a prisoner, absent an allegation that it was in retaliation for the
prisoner‟s exercise of his or her constitutional rights, is not actionable under Section 1983. See,
e.g., Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (“[A] prison inmate has no general
constitutional right to be free from being falsely accused in a misbehavior report.”); Johnson v.
Barney, No. 04 Civ. 10204 (LBS), 2006 WL 3714442, at *2 (S.D.N.Y. Dec. 13, 2006) (“Merely
filing a falsified investigative report in a grievance proceeding does not rise to the level of a
constitutional violation; plaintiff‟s complaint fails to state a claim.”), aff’d, 360 F. App‟x 199 (2d
Cir. 2010). Here, the Misbehavior Report was filed the day after the sink collapsed, weeks
before Plaintiff filed a grievance with the Inmate Grievance Resolution Committee (“IGRC”)
and months before he sent a letter to the DOCS Commissioner about the IGRC‟s response. (See
Dec. 9, 2011 Report; IGRC Grievance; Mem. in Opp‟n Ex. A). As these are the only even
arguably protected activities described in the Amended Complaint, Plaintiff has not plausibly
alleged that the “fraudulent misbehavior report” was in retaliation for the exercise of his rights,
and this claim also fails.2

2

Similarly, Plaintiff cannot state a retaliation claim based on his confinement in the SHU,
as this incident also occurred immediately after the sink collapsed and weeks before he filed his
IGRC grievance and wrote to the DOCS Commissioner. See Espinal v. Goord, 558 F.3d 119,
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C. Confinement in the SHU
Finally, Plaintiff alleges that he was sent to the SHU for five days following treatment for
the injuries to his arm and hand. (Am. Compl. II(D); id. at 8; Mem. in Opp‟n 2). This allegation
is evaluated as a due process claim under the Fourteenth Amendment. See Zappulla v. Fischer,
No. 11 Civ. 6733 (JMF), 2013 WL 1387033, at *6 (S.D.N.Y. Apr. 5, 2013). In evaluating a due
process claim, “the threshold issue is always whether the plaintiff has a property or liberty
interest protected by the Constitution.” Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001)
(brackets and internal quotation marks omitted). A prisoner subject to discipline, such as
confinement in the SHU, can show such a liberty interest “only if the discipline „imposes [an]
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life.‟” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (per curiam) (quoting Palmer v.
Richards, 364 F.3d 60, 64 (2d Cir. 2004)); see also Sandin v. Conner, 515 U.S. 472, 484 (1995).
In determining whether segregated confinement is an “atypical and significant hardship,” courts
must consider factors such as “„the extent to which the conditions of the . . . segregation differ
from other routine prison conditions‟ and „the duration of the . . . segregation imposed compared
to discretionary confinement.‟” Davis, 576 F.3d at 133 (quoting Palmer, 364 F.3d at 64).
Although the Second Circuit has explicitly declined to create a “bright line rule that a
certain period of SHU confinement automatically fails to implicate due process rights,” it has
established “guidelines for use by district courts in determining whether a prisoner‟s liberty
interest was infringed.” Palmer, 364 F.3d at 64. To the extent relevant here, “restrictive
confinements of less than 101 days do not generally raise a liberty interest warranting due
128 (2d Cir. 2009) (explaining that to state a claim for retaliation under the First Amendment, a
plaintiff must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action” (emphasis added) (internal quotation marks omitted)).
7

process protection, and thus require proof of conditions more onerous than usual.” Davis, 576
F.3d at 133; see Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999) (stating that where a plaintiff
endures onerous conditions for only a “brief interval,” they must be “especially harsh” to be
“atypical”). At the same time, the Court has cautioned that “SHU confinements of fewer than
101 days „could constitute atypical and significant hardships if the conditions were more severe
than the normal SHU conditions . . . or a more fully developed record showed that even
relatively brief confinements under normal SHU conditions were, in fact, atypical.‟” Davis, 576
F.3d at 133 (quoting Palmer, 364 F.3d at 65).
Applying these standards here, Plaintiff‟s claim fails as a matter of law, as he has not
alleged anything close to the kind of “especially harsh” conditions that could constitute an
atypical and significant hardship for only five days in segregated confinement. Sealey, 197 F.3d
at 586; see, e.g., Hynes v. Squillace, 143 F.3d 653, 658-59 (2d Cir. 1998) (per curiam) (holding
that twenty-one days of keeplock confinement did not give rise to a due process claim); Arce v.
Walker, 139 F.3d 329, 335-36 (2d Cir. 1998) (same with respect to eighteen days in the SHU,
including exercise deprivation and verbal harassment); Brown v. Graham, 470 F. App‟x 11, 1314 (2d Cir. 2012) (summary order) (same with respect to two five-day periods of “isolation in the
infirmary” and ten days of keeplock confinement); Zappulla, 2013 WL 1387033, at *6-7 (same
with repect to a five-day period). Indeed, he does not allege anything about the conditions in the
SHU, but merely complains about being confined there. Accordingly, this claim also fails.

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CONCLUSION
For the reasons discussed above, Defendants‟ motion to dismiss is GRANTED. 3 The
Clerk of the Court is directed to terminate the motion (Docket No. 24), to close the case, and to
mail a copy of this Memorandum Opinion and Order to Plaintiff.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order
would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
Dated: August 27, 2012
New York, New York

3

Because Plaintiff has failed to state a claim that Defendants violated his constitutional
rights, the Court need not, and does not, address Defendants‟ arguments regarding exhaustion of
administrative remedies, qualified immunity, and the personal involvement of Defendants
Health, Keyser, O‟Cana, Malloy, and Panzarella. See Kelsey v. Cnty. of Schoharie, 567 F.3d 54,
62 (2d Cir. 2009) (“When the facts, viewed in light most favorable to the plaintiff, do not
demonstrate that an officer‟s conduct violated a constitutional right, the court need not further
pursue the qualified immunity inquiry . . . .”); Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir.
1999) (“Of course, for a supervisor to be liable under Section 1983, there must have been an
underlying constitutional deprivation.”); Alsaifullah v. Furco, No. 12 Civ. 2907 (ER), 2013 WL
3972514, at *19 n.9 (S.D.N.Y. Aug. 2, 2013) (declining to address defendants‟ arguments
regarding personal involvement, supervisory liability, and qualified immunity because plaintiff
failed to state a claim for a deprivation of a federal right); McCoy v. Goord, 255 F. Supp. 2d 233,
252 (S.D.N.Y. 2003) (explaining that a court “may consider unexhausted claims on the merits
. . . to dismiss them . . . for failure to state a claim”).
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